This document provides an overview of social media issues for employers. It discusses how social media activity is increasingly being used in litigation and how the National Labor Relations Board is aggressively protecting employee social media rights. The document outlines examples of cases involving social media posts by employees that were both lawful and unlawful bases for termination. It also provides guidance on drafting appropriate social media policies for employees and complying with discovery requests regarding social media content.

1. SOCIAL MEDIA FOR EMPLOYERS:
SURVIVING THE STORM
David M. Kight, Esq.
Spencer Fane Britt & Browne, LLP
Kansas City, Missouri Overland Park, Kansas Jefferson City, Missouri
St. Louis, Missouri Omaha, Nebraska

2. 2012 Labor and Employment Seminar
May 10, 2012
Overland Park Convention Center
6000 College Boulevard
Overland Park, KS 66211
May 22, 2012
Hilton St. Louis Frontenac
1335 South Lindbergh Boulevard
St. Louis, MO 63131
June 14, 2012
Freeman Business Center
3220 McClelland Boulevard
Joplin, Missouri 64804
6.25 hours of HRCI credit is provided.

3. WHAT IS SOCIAL MEDIA
ANYWAY?

4. Where we are today..
The intersection
of social media
and the law has
arrived.
The cases have
begun…

5. Watch What You Post
Purvis v. Commissioner of Social
Security, 2011 WL 741234 (D. N.J. Feb.
23, 2011). Plaintiff claimed asthma as
basis for social security income. Claim
was denied. On Purvis's appeal, the
court noted that "[a]lthough the Court
remands the ALJ's decision for a more
detailed finding, it notes that in the
course of its own research, it discovered
one profile on what is believed to be
Plaintiff's Facebook page where she
appears to be smoking ... If accurately
depicted, Plaintiff's credibility is
justifiably suspect." Id. at *7.

6. Social Media Another Way
Former employee has contacted
20 of the contract workers you
use on behalf of her new
employer and is soliciting their
business. The former employee
has “connected” with 20 of your
clients via Linkedin and is
encouraging them to call her.
• Does this conduct violate the
non-compete agreement?

7. Yes Virginia, You can sue…
• TekSystems, Inc. v. Hammernik, et al., 2010
WL 1624258 (D. Minn. Mar. 16, 2010)
• The lawsuit alleged that after Hammernik
left TEKsystems in November 2009, she
“communicated” with at least 20
TEKSystems contract employees and
“connected” with about 16 of them using
the LinkedIn professional network.

8. How it ended…
• The case settled after the Company got a
permanent injunction against the employee.
The lesson learned:
Conduct over Twitter, Facebook
and LinkedIn are increasingly being
used by the Courts and are being
analyzed as if they were spoken or
sent by e-mail, fax or letter. Your
employees should be aware that
policies relating to conduct apply
equally to social media.

9. So what does this mean?
• Social media is becoming an increasing part
of our daily work lives. Thus, we will see it
becoming more intertwined with how
employees – and former employees –
operate…
• And demonstrate
their idiocy.

10. On The Agenda
• The National Labor Relations Board’s Social
Media Push
• Questions We Get from Clients
• You Make the Call
• Social Media in Litigation

11. The New Sheriff in Town…
They are the primary government employment related agency
which is addressing the rights of employees and employers
regarding social media.
They are getting very aggressive (historically) in taking actions
to increase employee rights. (See the new posting rule)
They are encouraging employees (even non-union employees)
to file unfair labor practice charges related to social media
discipline.

12. The NLRB
• Federal Agency headquartered in
Washington, D.C.
• Has a five member governing board, but the
majority is determined by the party in power
– (thus, politics occasionally enters the picture)
• Has the authority to investigate, ajudicate
and sue you to enforce their orders.

13. So, what can they do, really?
Remedies available to the NLRB if you have
committed an Unfair Labor Practice:
1. Requiring you to cleanse their record of
discipline;
2. Requiring you to reinstate them;
3. Requiring you to pay them backpay;
4. Requiring you to post a notice to employees; and
5. Court Injunctions.
13

14. So what is the biggest issue?
• Policies which the NLRB feel are too broad.
– Example: “Employees should not make disparaging
remarks about the company, their supervisor, etc. on
social media websites, blogs or any other form of
electronic media.”
• Drafting tip?
– If you must have a policy addressing comments,
make sure it is limited to trade secrets, confidential
information about the company or customers, and
information which if released would breach
agreements the company has.

15. You Make the Call #1
Five employees do not like their co-worker. They
believe the co-worker is a slacker and fakes illnesses to
get out of work. They post derogatory messages on
her Facebook page containing obscenities and openly
expressing their negative feelings toward her. The
victim complains. Following an investigation, the five
employees are discharged for harassment under the
company’s zero tolerance policy. Any problem with
the discharges?

16. You Make the Call #1
Most likely. Recently, an administrative law judge of the Board
held that the five employees were engaging in concerted
protected activity for which they could not be discharged.
The judge held that the Facebook postings were no different
than “water cooler” talk and could not be interfered with. He
held that even though the conversations were not directed to
the employer, because they involved terms and conditions of
employment they were protected.
The judge ordered the employees reinstated. An appeal to the
Board is pending.

17. You Make the Call #2
Employer is an ambulance service. Employer had a policy
prohibiting disparaging comments when discussing the
company or an employee’s superiors. An employee is asked by
a supervisor to prepare an incident report about a customer
complaint about the employee. The employee asked for a
union representative to be present during the preparation of
the report. She did not get the union rep. Employee goes
home and makes a negative post about her supervisor on her
personal Facebook page which drew supportive comments
from co-workers and further negative comments about the
supervisor. Employee is fired. Was it permissible?

18. You Make the Call #2
According to the NLRB, no. The policy prohibiting
negative comments was unlawful as likely to prohibit
an employee from engaging in lawful activity.
The NLRB further found that a discussion about an
employer’s refusal to comply with an employee’s
Weingarten right and discussing a supervisor on
Facebook was protected activity.
The termination was unlawful.

19. You Make the Call #3
Employee is a reporter. His employer encourages him to open
a Twitter account and use twitter to get stories out. Employee
gets a twitter account. Employee’s twitter biography mentions
that the employee is a reporter and names his employer.
Employee sends out a tweet critical of the newspaper’s copy
editors. Employer questions the employee and orders him not
to air internal grievances or comment about the paper publicly.
Employee then posts derogatory comments about homicides in
the city and tweets negatively about a tv station. Employer
terminates employee because of his repeated tweets damaging
the newspaper’s good will. Was the termination lawful?

20. You Make the Call #3
According to the NLRB, yes. The reporters tweets
were not related to his wages, hours or working
conditions. In addition, he was not tweeting in order
to involve others in issues related to employer. Rather,
he ignored his employer’s warnings about
inappropriate tweets.
The termination was lawful.

21. You Make the Call #4
Employer is a restaurant with an unwritten policy that
waitresses don’t share tips with the bartenders even though
the bartenders help serve food. A bartender discussed the
issue with a co-worker who agreed that it “sucked.” Several
months later in Facebook posts, the bartender complained to a
relative that he was doing waitresses work without the tips.
He called the restaurant’s customers “rednecks” and said he
hoped that they choked on glass as they drove home drunk.
He didn’t discuss the posting with co-workers and none of
them responded. The owner sent a facebook message to the
employee telling him his services were no longer needed. Was
the termination lawful?

22. You Make the Call #4
According to the NLRB, yes. Although the postings
concerned terms and conditions of work, the
employee did not discuss the posting with co-workers
and none of them responded to the posting. There
were no employee meetings or any attempt to initiate
group action concerning the policy.
The termination was lawful.

23. You Make the Call #5
Employer provides emergency and non-emergency medical
transportation and fire protection services. Employee is a
dispatcher. A Senator representing the state in which the
employer was located announced some fire districts were
getting federal grants. Employee posts on the Senator’s
“Facebook Wall” that her employer only got its contracts
because it was the cheapest in town, paid less than the
national average and only two trucks for an entire county. She
also posted that the company sent a crew who was unable to
perform CPR to respond to a cardiac arrest call. Employer
terminates the employee for public posting of disparaging
remarks and revealing confidential information. Was the
termination lawful?

24. You Make the Call #5
According to the NLRB, yes. The employee did not discuss her
posting with any other employees, including her husband who
was an EMT. There were no employee meetings regarding the
posting. The employee also did not use the postings as a way
to complain to management. The employee admitted that she
did not expect the Senator to assist her employment situation.
The termination was lawful.

25. You Make the Call #6
Employer was a retail store operator. Employee was a customer
service employee. Employee posts on Facebook critical
comments about a new Assistant Manager. Employee noted
“tyranny” at the store and that the Employer was going to get a
wake up call when people quit. Co-workers posted asking why
he was “wound up.” Employee responded by calling the
Assistant Manager a “super mega puta” and complained about
discipline. One co-worker posted a “hang in there” kind of
comment. Store Manager gave the employee a one-day
suspension which prohibited promotion for 12 months. Was
the discipline lawful?

26. You Make the Call #6
According to the NLRB, yes. The postings were expressions of
an individual’s gripe. They expressed only frustration with his
individual dispute and did not contain language suggesting
group action. The termination was lawful.

27. Questions We Get From Clients
• I need a social media policy, don’t I?
• What do I need to have in a social media
policy?

28. Social Media
Policies: The
Right Approach
Step 1:
Address Use and
Misuse of Electronic
Devices

29. Step 2:
Confidentiality and
Trade Secret
Protection

30. Step 3: Make clear
that ethics and
harassment policies
apply to social
media

31. Success.
You have a
solid social
media
policy.

32. Do these
• Address Use and Misuse
1 of Electronic Devices
• Confidentiality and Trade
2 Secret
• Ethics and Harrassment
3 Policies Do Apply

33. Don’t do these
• Forget about e-mail or
1 instant messaging.
• Assume you can cover all
2 areas of social media.
• Forget to get employees
3 to recognize the policy.

34. Potential Claims For Posts
• Defamation
– Libel / Slander for comments made on
Twitter
– Courtney Love eventually paid $430k to
settle a defamation claim
• Intellectual property infringement
(including trademark and copyright
– i.e. tagging another company’s copyrighted
terms in your youtube tags.

35. Additional Potential Claims
• Claims by co-workers for harassment,
discrimination, negligent retention,
negligent supervision, infliction of emotional
distress
• Claims by third parties for emotional distress
or privacy related torts
• Non-competition claims
– i.e. soliciting clients or employees through
LinkedIn or Facebook (See above)

36. Potential Claims by Users
• Off-Duty conduct laws (IL, CA, NY, CO, ND)
• Retaliation under Title VII or state law
• Whistleblowing under Sarbanes Oxley
• Discrimination under Title VII or state law
• Invasion of Privacy
• Violation of the Stored Communications Act

37. Not there yet
• There is no such thing as a
“Friend” privilege preventing a
Court from ordering someone
to provide a username,
password or details from a
Social Media account where you
have limited your posts to “friends.”

38. Discovery of Social Media Content
• E.E.O.C. v. Simply Storage
Management, U.S. Dist. Court for S.D.
Indiana (May 11, 2010).
http://bit.ly/c58NxX
• In this case, the employer was sued for
sexual harassment by two employees.
• In discovery, the employer sought
production of photographs and videos
as well as updates and messages on
their Facebook and MySpace pages.

39. Discovery of Social Media Content
• The EEOC objected arguing based on privacy
and an attempt to embarrass the plaintiffs.
• The employer countered that the EEOC had
placed the emotional health of the woman
at issue by claiming “medical treatment”
stemming from alleged harassment and
claiming depression from post traumatic
stress disorder.

40. Discovery of Social Media Content
• The court ruled:
– “It is reasonable to expect severe emotional or
mental injury to manifest itself in some SNS
content, and an examination of that content
might reveal whether onset occurred, when,
and the degree of distress. Further, information
that evidences other stressors that could have
produced the alleged emotional distress is also
relevant.”

41. Discovery of Social Media Content
• Crispin v. Christian Audigier, Inc., U.S. Dist. Court
for the Central District of California (May 26,
2010)
• http://scr.bi/a11m59
• Employer sought postings on Facebook,
MySpace and Media Temple.
• Court quashed a subpoena to the extent it
sought private e-mail messages through the site
as protected under the Stored Communications
Act.

42. Discovery of Social Media Content
• Barnes v. CUS Nashville, 3:09-cv00764, U.S. Dist.
Ct. M.D. of Tenn.
• Plaintiff claims she fell from a bar at a “Coyote
Ugly” saloon in Nashville. She argued that the
bar was wet and slick and when she tried to
climb onto the bar hit her head.
• Defendant subpoenaed Facebook for plaintiff's
Facebook information, including photos of
plaintiff and her friends dancing on the bar.

43. Coyote Ugly – People do this

44. Discovery of Social Media Content
• The court ruled:
– “In order to try to expedite further discovery
regarding the photographs, their captions and
comments, the Magistrate Judge is willing to
create a Facebook account. If Julie Knudsen
and Michael Vann will accept the Magistrate
Judge as a “friend” on Facebook for the sole
purpose of reviewing photographs and related
comments in camera, he will promptly review
and disseminate any relevant information to
the parties. The Magistrate Judge will then
close this Facebook account.”

45. Quick Tip
• Companies should update
their document retention
policy to include social
media activity. The
procedures that the
company is following for
e-mails in terms of storage
and retention periods may
be a good starting point.

46. FINRA is There
• FINRA issued guidance in January 2010 for blogs
and social networking sites:
• "Every firm that intends to communicate, or permit
its associated persons to communicate, through
social media sites must first ensure that it can
retain records of those communications as
required by Rules 17a-3 ad 17a-4 under the
Securities Exchange Act of 1934 and NASD Rule
3110."

47. THANK YOU FOR COMING!
• Any Questions?
David Kight, Esq.
Spencer Fane Britt & Browne, LLP
dkight@spencerfane.com